Border Patrol agent tied to smuggled money but not to slaying in day 3 of trial

BROWNSVILLE — Prosecutors on Thursday were able to tie Border Patrol Agent Joel Luna to some of the hundreds of thousands of dollars his brothers allegedly smuggled to Texas from Mexico, but they didn’t prove he had any direct involvement in the murder he’s accused of committing.

Luna is one of five defendants the state charged with capital murder and drug trafficking after the naked and headless body of Franky Palacios was discovered floating in the waters off South Padre Island in March of 2015.

The Border Patrol agent is on trial now in Cameron County along with his younger brother, Eduardo, whom prosecutors tie to the powerful Mexican Gulf Cartel. Their older brother, Fernando, took a plea deal and has spent the last day and a half testifying against his two brothers — a defendant turned star witness.

During several tedious hours of testimony, Fernando explained in detail how the murder occurred, saying that it was his younger brother Eduardo who shot Franky in the head and then dumped his body at a spot where he once went fishing.

Joel was not at Veteran's Tire Shop in Edinburg, where prosecutors believe Palacios was killed, at the time of the shooting, and the only discussion Fernando recalled having with him about the murder occurred after their younger brother Eduardo got arrested more than three months later. The federal agent did want to know, however, if blood had been spilled at the murder scene, Fernando said.

“[Joel] asked me what had happened, because Eduardo was detained, under investigation, and I told him what he had done,” Fernando said. “And he asked me if there were bloodstains. And I told him that yes, there was one small one. He shook his head and he left.”

Fernando also said after the murder he wiped text messages off of his phone in order to protect Joel from blowback at work since the defendants were in the country illegally and could jeopardize his employment at the Border Patrol.

“I erased them, with regards to my brother Joel, to not damage him, knowing that he had a good job and we had done something wrong,” said Fernando, growing emotional as he spoke.

The testimony came as prosecutors sought to bring Joel more directly into a trial that has largely centered on a murder that Fernando pinned on Eduardo, known as “El Pajaro,” or the bird. That’s the nickname etched onto a gold-plated gun authorities retrieved during the investigation. The barrel is also stamped with the phrase “Cartel del Golfo” — Gulf Cartel.

Chief prosecutor Gus Garza asked Fernando to discuss a transaction in which he and “El Pajaro” received an estimated $250,000.

“After that money was obtained by you and Eduardo 'El Pajaro,' did you two meet with your brother Joel?” Garza asked.

“Yes,” Fernando responded through a translator.

“Did your brother Eduardo give to your brother Joel a large sum of money from the quarter million dollars that you all had made?” Garza continued.

“Yes. I don’t know if it was large amount of money,” he said. “I don’t know how much it was.”

Fernando also said he witnessed Joel removing $5,000 from a safe that was in his house at the time. He said he was instructed to give the money to Eduardo. Likewise, he said Joel gave him some of the cash to build a house that cost over $100,000.

Asked where the money came from, Fernando said it was from cash he had gotten from one of Eduardo’s Mexican contacts and later helped smuggle across the border into South Texas starting in 2013.

Garza, the prosecutor, dramatically emphasized Joel’s use of a black safe, whose contents are key evidence for the state’s case. Investigators discovered the safe in the home of Joel’s mother-in-law, and inside they found cocaine, the gold-plated “pajaro” gun said by Fernando to belong to Eduardo and Joel’s commemorative Border Patrol badge and workstation password.

When Fernando indicated that the drug baggies he ordered over the Internet were later found in the safe, Garza boomed: “What safe are you referring to?”

“It was Joel’s,” Fernando responded.

“The same Joel Luna that’s sitting over here?” he asked.

When Fernando indicated it was, Garza continued, “the one that used to wear the U.S. border patrol uniform?”

“Yes,’’ he said.

When Joel’s lawyer, Carlos A. Garcia, got his chance to cross-examine Fernando, however, the older brother put distance between Joel and the murder and drug trafficking allegations. Over and over, Garcia asked him if he had any knowledge of his middle brother’s involvement in drug trafficking, money smuggling or the events that occurred at the Edinburg tire shop on the day Franky Palacios was killed. To each one Fernando said he did not.

When they finally did discuss the murder after Eduardo was arrested, Garcia asked him to describe Joel’s demeanor.

“You guys have just put him in a difficult spot, haven’t you?” Garcia said. “And now one of his own brothers has admitted to him that another brother killed somebody.”

Fernando gave another one-word answer: “Yes.”